我國(guó)保險(xiǎn)法制建設(shè)的歷史回顧及其思考
發(fā)布時(shí)間：2018-09-07 17:18
【摘要】： 保險(xiǎn)法制建設(shè)包括立法、執(zhí)法和守法。我國(guó)的保險(xiǎn)法制建設(shè)歷史將 近一百年。在這近百年的保險(xiǎn)法制建設(shè)中，我們能從中學(xué)習(xí)到什么經(jīng)驗(yàn) 和教訓(xùn)，這將有助于我國(guó)今后的保險(xiǎn)法制建設(shè)�，F(xiàn)在的保險(xiǎn)法規(guī)還有些 什么缺陷和不足？為了適應(yīng)日益迅速發(fā)展的保險(xiǎn)業(yè)，還應(yīng)該制定哪些保 險(xiǎn)法規(guī)？此外，筆者還對(duì)如何搞好保險(xiǎn)法制建設(shè)工作提出了自己的見 解。 本文以馬克思主義唯物辯證法為指導(dǎo)思想，反復(fù)運(yùn)用從分析到綜 合、從具體到抽象、歸納總結(jié)等研究方法。 本文的內(nèi)容共分三章。第一章是對(duì)我國(guó)保險(xiǎn)法制建設(shè)的歷史回顧 及其思考。保險(xiǎn)立法開始于清朝末年，新興的資產(chǎn)階級(jí)面對(duì)日益嚴(yán)重的 民族危機(jī)，要求反抗外敵，改革現(xiàn)狀。在這種情況下，清政府于1902年 下令斟酌舊律，擬定新律。在保險(xiǎn)法律方面，清政府?dāng)M定了幾部有關(guān)的 法律，如《欽定大清商律》、《大清商律草案》等。由于辛亥革命的爆發(fā)，并 沒有正式頒布實(shí)施，但清政府的保險(xiǎn)法制建設(shè)意識(shí)是值得肯定的。北洋 政府期間，保險(xiǎn)業(yè)有了一定的發(fā)展�！侗ｋU(xiǎn)契約法草案》和《保險(xiǎn)業(yè)法 案》均由于北洋政府的垮臺(tái)而未獲實(shí)施。在國(guó)內(nèi)革命戰(zhàn)爭(zhēng)時(shí)期，保險(xiǎn)法 規(guī)得到逐步完善。國(guó)民黨政府于1929年頒布了《保險(xiǎn)法》，內(nèi)分總則、損 害保險(xiǎn)、人身保險(xiǎn)3章共82條。1935年行政院頒布了《保險(xiǎn)業(yè)法》，內(nèi) 分總則、保證金、保險(xiǎn)公司、相互保險(xiǎn)社、會(huì)計(jì)、法則、附則7章共80條。 這是兩部很重要的保險(xiǎn)法律，但國(guó)民黨政府迫于帝國(guó)主義的壓力沒有 頒布施行日期�？谷諔�(zhàn)爭(zhēng)時(shí)期，保險(xiǎn)法制進(jìn)一步完善，《保險(xiǎn)法》和《保險(xiǎn) 業(yè)法》經(jīng)過(guò)了修改。盡管如此，保險(xiǎn)業(yè)沒有一部公開實(shí)施的保險(xiǎn)法，為保 險(xiǎn)業(yè)的發(fā)展提供法律保護(hù)，這體現(xiàn)了當(dāng)局政府的軟弱性及妥協(xié)性。新中 國(guó)成立后，我國(guó)制定了一系列保險(xiǎn)法規(guī)，對(duì)保險(xiǎn)公司的公有化作出了貢 獻(xiàn)，但保險(xiǎn)業(yè)的發(fā)展僅靠制定強(qiáng)制保險(xiǎn)法規(guī)來(lái)發(fā)展是不夠的，而且會(huì)遭 到保戶的抵制。新中國(guó)成立后至 19 7 9年，我國(guó)的保險(xiǎn)業(yè)歷經(jīng)“四起三 落”，政府對(duì)保險(xiǎn)業(yè)的作用認(rèn)識(shí)不清，保險(xiǎn)法制建設(shè)停滯不前。從1980 年恢復(fù)保險(xiǎn)后，保險(xiǎn)法制建設(shè)工作有了一些進(jìn)展，但由于保險(xiǎn)業(yè)獨(dú)家經(jīng) 營(yíng)，法制建設(shè)還遠(yuǎn)遠(yuǎn)不能適應(yīng)保險(xiǎn)業(yè)發(fā)展的需要，“無(wú)法可依，有法不 依，執(zhí)法不嚴(yán)”是那時(shí)的真實(shí)寫照。95年《保險(xiǎn)法》的頒布實(shí)施標(biāo)志著我 國(guó)保險(xiǎn)法制建設(shè)工作邁上了一個(gè)新的臺(tái)階。自那以后，一系列配套的保 險(xiǎn)法規(guī)的出臺(tái)使我國(guó)的保險(xiǎn)法律體系初步形成，為保險(xiǎn)業(yè)的發(fā)展打下 了基礎(chǔ)。 第二章是對(duì)我國(guó)在保險(xiǎn)法制建設(shè)工作中取得的成就及存在的不足 進(jìn)行探討。我國(guó)近幾年來(lái)在保險(xiǎn)法制建設(shè)中取得的成績(jī)是有目共睹的。 以《保險(xiǎn)法》為基本框架，在保險(xiǎn)業(yè)法方面制定了《保險(xiǎn)管理暫行規(guī)定入 《保險(xiǎn)公司管理規(guī)定入《保險(xiǎn)代理人管理規(guī)定（試行乃A保險(xiǎn)經(jīng)紀(jì)人管 理規(guī)定（試行乃A機(jī)動(dòng)車輛保險(xiǎn)條款凡《保險(xiǎn)機(jī)構(gòu)高級(jí)管理人員任職資 格管理暫行規(guī)定入《機(jī)動(dòng)車輛保險(xiǎn)單證監(jiān)制管理規(guī)定》等。在保險(xiǎn)合同 法方面，新《合同法》適用于保險(xiǎn)合同。在保險(xiǎn)特別法方面，《海商法》中 專門有海上保險(xiǎn)專章，就有關(guān)海上保險(xiǎn)作出了詳細(xì)的規(guī)定。 自《保險(xiǎn)法》頒布實(shí)施至今已將近五年了，它的不合理的方面也逐 漸暴露出來(lái)。如第16條“…投保人因過(guò)失未履行如實(shí)告知義務(wù)，對(duì)保險(xiǎn) 事故的發(fā)生有嚴(yán)重影響的，保險(xiǎn)人對(duì)于保險(xiǎn)合同解除前發(fā)生的保險(xiǎn)事 故，不承擔(dān)賠款或者給付保險(xiǎn)金的責(zé)任，但可以退還保險(xiǎn)費(fèi)”。此條款不 合理處在于：一是沒有規(guī)定不可抗辯權(quán)的期限。根據(jù)新《合同法》的有關(guān) 規(guī)定，，保險(xiǎn)合同滿一年后，投保人由于故意或過(guò)失未履行如實(shí)告知義務(wù) 已是既成事實(shí)，保險(xiǎn)人是不可以單方面解除保險(xiǎn)合同的。二是保險(xiǎn)人可 以利用“但可以退還保險(xiǎn)費(fèi)”來(lái)投機(jī)，因?yàn)楸ｋU(xiǎn)人發(fā)覺投保人的過(guò)失行 為時(shí)可以根據(jù)具體情況來(lái)利用此條款，即保險(xiǎn)事故沒有發(fā)生時(shí)就不作 出反應(yīng)，趁此機(jī)會(huì)賺取保費(fèi)；當(dāng)保險(xiǎn)事故發(fā)生時(shí)就利用此條款來(lái)解除合 同，其損失最多是退還保費(fèi)（也可以不退還保費(fèi)，因?yàn)楸ｋU(xiǎn)法沒有耍求 必須退還保費(fèi)人又如第30條規(guī)定“關(guān)于保險(xiǎn)合同的條款，保險(xiǎn)人與投 保人、被保險(xiǎn)人或者受益人有爭(zhēng)議時(shí)，人民法院或者仲裁機(jī)關(guān)應(yīng)當(dāng)作出 有利于被保險(xiǎn)人和受益人的解釋”�！盃�(zhēng)議”的解釋通常是“各抒己見，互 2 相辯論＼ 只要雙方對(duì)條款的解釋意見不一，各抒己見，就屬于“有爭(zhēng) 議＼此條款是否可借鑒我國(guó)臺(tái)灣保險(xiǎn)法的有關(guān)規(guī)定“保險(xiǎn)契約之解釋， 應(yīng)探求契約當(dāng)事人之真意，不得拘泥于所用之文字；如有疑義時(shí)，以作 有利于被保險(xiǎn)人之解釋為原則＼ 另外，第10條八5條石3條J4條、 104條等也有不合理的地方。其它保險(xiǎn)法規(guī)也是如此，如《保險(xiǎn)代理人 管理規(guī)定（試行乃第54條，《機(jī)動(dòng)車輛保險(xiǎn)條款》等。 第三章是對(duì)保
[Abstract]:The construction of insurance legal system includes legislation, law enforcement and law abiding.
In the past one hundred years, what experience can we learn from this nearly 100 years of insurance legal system construction?
And lessons, this will help our country's insurance legal system construction in the future.
What are the deficiencies and deficiencies? In order to adapt to the increasingly rapid development of the insurance industry, what guarantees should be made?
Besides, I also put forward my own opinions on how to do well in the construction of insurance legal system.
Solution.
In this paper, Marx's materialist dialectics is used as the guiding ideology.
Integration, from concrete to abstract, inductive and other research methods.
The content of this article is divided into three chapters. The first chapter is a historical review of China's insurance legal system construction.
Insurance legislation began in the late Qing Dynasty, and the emerging bourgeoisie faced increasingly serious problems.
The national crisis calls for resistance to foreign enemies and reform. In this case, the Qing government in 1902.
In order to formulate the new law, the Qing government formulated several related laws in terms of insurance law.
Laws, such as the Qing Dynasty Qing Dynasty commercial law, the Qing Dynasty commercial law draft, and so on.
Without the formal promulgation and implementation, the Qing government's awareness of the construction of the insurance legal system is worth affirming.
During the period of the government, the insurance industry has made some progress.
All cases were not implemented because of the collapse of the Beiyang government. During the period of the revolutionary war, the insurance law was applied.
The regulations were gradually improved. The Kuomintang government promulgated the "insurance law" in 1929, which was divided into general provisions.
There are 82 chapters in the 3 chapter of life insurance,.1935 promulgated by the Executive Yuan.
There are 80 articles in general principles, margin, insurance companies, mutual insurance companies, accounting rules, and Annex 7 chapters.
These are two very important insurance laws, but the Kuomintang government is under the pressure of imperialism.
During the war of resistance against Japan, the insurance legal system was further improved.
Industry law has been amended. Nevertheless, the insurance industry does not have an open insurance law.
The development of the insurance industry provides legal protection, which reflects the weakness and compromise of the government.
After the founding of the people's Republic of China, China has formulated a series of insurance laws and regulations, which has made tribute to the public ownership of insurance companies.
But the development of the insurance industry is not enough only by enacting compulsory insurance laws and regulations.
After the founding of new China to 1979, China's insurance industry went through "four to three".
The government is not clear about the role of the insurance industry, and the construction of the insurance legal system is stagnant. From 1980
After the restoration of insurance in 2003, some progress has been made in the construction of insurance legal system.
The construction of the legal system is far from being able to meet the needs of the development of the insurance industry.
According to the law, lax enforcement is the true portrayal of that time. The promulgation and implementation of the insurance law in.95 marked me.
The construction of national insurance legal system has taken a new step. Since then, a series of supporting policies have been implemented.
The introduction of the insurance laws and regulations has initially formed the insurance legal system in China, laying the foundation for the development of the insurance industry.
The foundation.
The second chapter is about the achievements and shortcomings of China's insurance legal system construction.
In recent years, our achievements in the construction of insurance legal system are obvious to all.
With the insurance law as the basic framework, the Interim Provisions on insurance management have been formulated in the law of insurance industry.
The provisions of the insurance company's management are incorporated into the provisions of the insurance agents' management (A insurance brokers).
Rationale (trial implementation is A motor vehicle insurance clause.
Interim Provisions on grid management shall be included in the regulations for the supervision and management of motor vehicle insurance documents.
In terms of law, the new contract law is applicable to insurance contracts.
A special chapter on marine insurance is provided with detailed provisions concerning marine insurance.
It has been nearly five years since the promulgation of the insurance law, and its unreasonable aspects are also
Gradually exposed. Such as the sixteenth "..." The insured fails to perform the duty of truthfully informing due to negligence and to the insurance.
If the occurrence of an accident is seriously affected, the insurer shall have an insurance before the termination of the insurance contract.
Therefore, it is not liable for compensation or payment of insurance premium, but it can refund the premium. "
The reason lies in the fact that there is no time limit for the incontestable right.
It is stipulated that after one year's insurance contract, the insured fails to perform the duty of truthfully disclosure because of intentional or negligence.
It is a fact that the insurer can not unilaterally lift the insurance contract. Two is the insurer.
Speculate on the use of "but can refund the premium", because the insurer finds the fault of the insured.
It is possible to make use of this clause according to the specific circumstances, that is, no insurance accident occurs.
Take advantage of this opportunity to earn premiums; when the insurance accident occurs, use this clause to dissolve it.
At the same time, the most losses are the refund of premiums (or the refund of premiums), because the insurance law is not demanding.
The insurer must be refunded, as is the thirtieth provision, "the terms and conditions of the insurance contract, the insurer and the investment."
If the insurer is in dispute with the insured or the beneficiary, the people's court or the arbitration organ shall make a decision.
It is beneficial to the interpretation of the insured and the beneficiary.
Two
Phase debate: as long as the two sides disagree on the interpretation of the clauses, their opinions are contending.
Whether the clause can be used for reference in the relevant provisions of the insurance law of the Taiwan, "the interpretation of the insurance contract,"
We should explore the true meaning of the parties concerned and not be restricted to the words used.
It is conducive to the interpretation of the insured as principle. In addition, tenth, eight, 5 stones, 3 J4,
104, there are also unreasonable things. The same is true of other insurance laws, such as insurance agents.
Management regulations (trial implementation are fifty-fourth, < motor vehicle insurance clause > and so on).
The third chapter is about insurance.
【學(xué)位授予單位】：西南財(cái)經(jīng)大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2000
【分類號(hào)】：F842
本文編號(hào)：2228909
[Abstract]:The construction of insurance legal system includes legislation, law enforcement and law abiding.
In the past one hundred years, what experience can we learn from this nearly 100 years of insurance legal system construction?
And lessons, this will help our country's insurance legal system construction in the future.
What are the deficiencies and deficiencies? In order to adapt to the increasingly rapid development of the insurance industry, what guarantees should be made?
Besides, I also put forward my own opinions on how to do well in the construction of insurance legal system.
Solution.
In this paper, Marx's materialist dialectics is used as the guiding ideology.
Integration, from concrete to abstract, inductive and other research methods.
The content of this article is divided into three chapters. The first chapter is a historical review of China's insurance legal system construction.
Insurance legislation began in the late Qing Dynasty, and the emerging bourgeoisie faced increasingly serious problems.
The national crisis calls for resistance to foreign enemies and reform. In this case, the Qing government in 1902.
In order to formulate the new law, the Qing government formulated several related laws in terms of insurance law.
Laws, such as the Qing Dynasty Qing Dynasty commercial law, the Qing Dynasty commercial law draft, and so on.
Without the formal promulgation and implementation, the Qing government's awareness of the construction of the insurance legal system is worth affirming.
During the period of the government, the insurance industry has made some progress.
All cases were not implemented because of the collapse of the Beiyang government. During the period of the revolutionary war, the insurance law was applied.
The regulations were gradually improved. The Kuomintang government promulgated the "insurance law" in 1929, which was divided into general provisions.
There are 82 chapters in the 3 chapter of life insurance,.1935 promulgated by the Executive Yuan.
There are 80 articles in general principles, margin, insurance companies, mutual insurance companies, accounting rules, and Annex 7 chapters.
These are two very important insurance laws, but the Kuomintang government is under the pressure of imperialism.
During the war of resistance against Japan, the insurance legal system was further improved.
Industry law has been amended. Nevertheless, the insurance industry does not have an open insurance law.
The development of the insurance industry provides legal protection, which reflects the weakness and compromise of the government.
After the founding of the people's Republic of China, China has formulated a series of insurance laws and regulations, which has made tribute to the public ownership of insurance companies.
But the development of the insurance industry is not enough only by enacting compulsory insurance laws and regulations.
After the founding of new China to 1979, China's insurance industry went through "four to three".
The government is not clear about the role of the insurance industry, and the construction of the insurance legal system is stagnant. From 1980
After the restoration of insurance in 2003, some progress has been made in the construction of insurance legal system.
The construction of the legal system is far from being able to meet the needs of the development of the insurance industry.
According to the law, lax enforcement is the true portrayal of that time. The promulgation and implementation of the insurance law in.95 marked me.
The construction of national insurance legal system has taken a new step. Since then, a series of supporting policies have been implemented.
The introduction of the insurance laws and regulations has initially formed the insurance legal system in China, laying the foundation for the development of the insurance industry.
The foundation.
The second chapter is about the achievements and shortcomings of China's insurance legal system construction.
In recent years, our achievements in the construction of insurance legal system are obvious to all.
With the insurance law as the basic framework, the Interim Provisions on insurance management have been formulated in the law of insurance industry.
The provisions of the insurance company's management are incorporated into the provisions of the insurance agents' management (A insurance brokers).
Rationale (trial implementation is A motor vehicle insurance clause.
Interim Provisions on grid management shall be included in the regulations for the supervision and management of motor vehicle insurance documents.
In terms of law, the new contract law is applicable to insurance contracts.
A special chapter on marine insurance is provided with detailed provisions concerning marine insurance.
It has been nearly five years since the promulgation of the insurance law, and its unreasonable aspects are also
Gradually exposed. Such as the sixteenth "..." The insured fails to perform the duty of truthfully informing due to negligence and to the insurance.
If the occurrence of an accident is seriously affected, the insurer shall have an insurance before the termination of the insurance contract.
Therefore, it is not liable for compensation or payment of insurance premium, but it can refund the premium. "
The reason lies in the fact that there is no time limit for the incontestable right.
It is stipulated that after one year's insurance contract, the insured fails to perform the duty of truthfully disclosure because of intentional or negligence.
It is a fact that the insurer can not unilaterally lift the insurance contract. Two is the insurer.
Speculate on the use of "but can refund the premium", because the insurer finds the fault of the insured.
It is possible to make use of this clause according to the specific circumstances, that is, no insurance accident occurs.
Take advantage of this opportunity to earn premiums; when the insurance accident occurs, use this clause to dissolve it.
At the same time, the most losses are the refund of premiums (or the refund of premiums), because the insurance law is not demanding.
The insurer must be refunded, as is the thirtieth provision, "the terms and conditions of the insurance contract, the insurer and the investment."
If the insurer is in dispute with the insured or the beneficiary, the people's court or the arbitration organ shall make a decision.
It is beneficial to the interpretation of the insured and the beneficiary.
Two
Phase debate: as long as the two sides disagree on the interpretation of the clauses, their opinions are contending.
Whether the clause can be used for reference in the relevant provisions of the insurance law of the Taiwan, "the interpretation of the insurance contract,"
We should explore the true meaning of the parties concerned and not be restricted to the words used.
It is conducive to the interpretation of the insured as principle. In addition, tenth, eight, 5 stones, 3 J4,
104, there are also unreasonable things. The same is true of other insurance laws, such as insurance agents.
Management regulations (trial implementation are fifty-fourth, < motor vehicle insurance clause > and so on).
The third chapter is about insurance.
【學(xué)位授予單位】：西南財(cái)經(jīng)大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2000
【分類號(hào)】：F842
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前2條
1 奚丹慧;我國(guó)汽車保險(xiǎn)業(yè)務(wù)問題研究[D];河北經(jīng)貿(mào)大學(xué);2012年
2 徐一帆;人民幣匯率的變動(dòng)對(duì)我國(guó)貿(mào)易收支的影響[D];東北師范大學(xué);2012年
本文編號(hào)：2228909
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